On January 23, 2014, the Supreme Court of Canada released two
decisions that will make summary judgment more widely
available to parties. The reasons in Hryniak v. Mauldin, 2014 SCC 7, and
Bruno Appliance and Furniture, Inc. v.
Hryniak, 2014 SCC 8, signal a cultural shift in which
summary judgment will be available whenever a summary judgment
motion involves less time and expense than a trial, provided that
the process enables the motion judge to reach a fair and just
determination on the merits. In effect, the "full
appreciation" test formulated by the Ontario Court of Appeal
has been replaced with a sufficient appreciation test, which grants
judges wide discretion to use dispositive fact-finding powers to
grant summary judgment seemingly in all cases.
The ultimate question is whether there is a genuine issue
requiring a trial. The Court held that a genuine issue requiring a
trial does not exist if the motion process (1) allows the judge to
make the necessary findings of fact; (2) allows the judge to apply
the law to the facts; and (3) is a proportionate, more expeditious
and less expensive means to achieve a just result than going to
trial. The new summary judgment test articulated by the Court asks
the motion judge to consider that question in two steps.
Under the first step of the test, the judge must determine if
there is a genuine issue requiring trial solely on the basis of the
evidence before the court, without using the new powers granted in
2010 under Rules 20.04(2.1) and (2.2) (i.e., weighing evidence,
evaluating credibility, drawing reasonable inferences or ordering
oral evidence). There will be no genuine issue requiring a trial if
the summary judgment process provides the judge with the evidence
required to fairly and justly adjudicate the dispute in a timely,
affordable and proportionate procedure. If it does, summary
judgment should be granted. If the judge determines, on the basis
of the record before the Court, that there appears to be a genuine
issue requiring a trial, the judge must go to the second step of
Under the second part of the test, the judge must determine
whether the need for a trial can nevertheless be avoided by using
the Rule 20.04(2.1) and (2.2) powers to resolve the matter on the
motion. According to the Court, there is a presumption in favour of
using these powers and the discretion to refrain from using them
should be viewed as a "safety valve" that is primarily
applicable in cases in which their use would be "clearly"
inappropriate (e.g., where unmeritorious motions for summary
judgment could be abused tactically to add time and expense). The
judge's decision to use these powers is a discretionary one,
based on whether it would be against the interest of justice to do
so. In somewhat circular reasoning, the Court held that the use of
the powers would not be against the interest of justice if it would
lead to a fair and just result and would serve the goals of
timeliness, affordability and proportionality in light of the
litigation as a whole when assessed in relation to a full
Notably, however, the Court did not provide any guidance for
determining what constitutes a fair and just result at either step
in the test. Therefore, there is uncertainty about how this
analysis will be applied by judges.
Importantly, as part of its new framework, the Court held that
parties should bring motions for directions in cases involving
complex or voluminous records, in order to streamline the motions
process prior to the summary judgment hearing itself. The failure
to do so may be a basis for awarding costs under Rule 20.06(a).
Additionally, in cases in which a summary judgment motion is
unsuccessful, the Court held that judges may make liberal use of
the trial management powers in Rule 20.05(2) to craft a responsive
and contextual trial process. In this respect, the Court stated
that a judge who dismisses a summary judgment motion should
generally remain seized of the matter as the trial judge.
Finally – and significantly in view of the amount of
discretion accorded to motion judges under the new framework
– the Court held that a judge's determination of whether
there is a genuine issue requiring a trial or whether the new
fact-finding powers should be used on summary judgment will attract
considerable defence on appeal absent an extricable legal error or
clear case of injustice. Accordingly, to return to an old summary
judgment adage, parties would be well-advised to "put their
best foot forward" in responding to a motion. In light of the
clear policy shift towards summary judgment taken by the Supreme
Court, it will be considerably more difficult to contest such
motions from now on.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).